Hastings, Chief Judge, and Duffy and Schnackenberg, Circuit Judges. Duffy, Circuit Judge (concurring in the result).
SCHNACKENBERG, Circuit Judge.
Paul W. Panczko, defendant, appeals from a judgment of the district court sentencing him to a term of 10 years and fining him $500 and costs, following his plea of not guilty of violation of § 1704, Title 18 U.S.C. as charged in an indictment. There was a jury verdict finding him guilty.
§ 1704 provides, in part:
Whoever steals, purloins, embezzles, or obtains by false pretense any key suited to any lock adopted by the Post Office Department and in use on any of the mails or bags thereof, or any key to any lock box, lock drawer, or other authorized receptacle for the deposit or delivery of mail matter; or
Whoever knowingly and unlawfully makes, forges, or counterfeits any such key, or possesses any such mail lock or key with the intent unlawfully or improperly to use, sell, or otherwise dispose of the same, or to cause the same to be unlawfully or improperly used, sold, or otherwise disposed of;
Shall be fined not more than $500 or imprisoned not more than ten years, or both. * * *
1. A jury, consisting of eight women and four men with two alternate jurors, was selected, and sworn on December 9, 1964. Trial commenced on December 10, 1964, when the first witness was called. The case was submitted to the jury for decision on Monday, December 14, 1964, at 4:30 P.M.
At 10:30 P.M. on the same day, the court announced that he was about to permit the jurors to "go to their respective homes, with the admonition that they, of course, speak to no one about the case or read anything about it, not to discuss it with anybody until they return to discuss it with their fellow jurors in the morning * * * well they can come back here at 9:30."
Thereupon defense counsel stated that defendant objected to the jury being permitted to separate.
The court then had the jury brought before him and, by interrogation of the foreman, elicited his opinion that it did not look like a unanimous verdict would be arrived at "tonight". The court then stated that the jurors were not to read anything or listen to anything about the case or discuss it with anyone. He thereupon dismissed them until 10 o'clock the following morning.
One of the women jurors requested that someone take her to the train depot. As to another woman juror, the marshal told the court that he understood "she lives in Joliet and I think the last train has already gone". A male juror volunteered that there were some trains "between 12:15 and 1:15 that we could catch, if anybody were headed in those directions".
A woman juror stated: "I have to take the Northwestern [Railroad] up to the northeast corner of the state, north of Waukegan * * * I have my car parked down by the railroad track in Waukegan and I drive seven miles from there. It is down in the desolate -- " The court interrupted her saying "You can catch your train, I mean, you can get a train?" She answered "Yes".
The court then proceeded to question a male juror who said he would take the subway, and a woman juror said ...